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Wednesday, 16 March 2005
Page: 36

Senator CHERRY (11:46 AM) —by leave—I move amendment (3) on sheet 4543 and amendment (1) on sheet 4557:

(3)    Clause 10, page 10 (line 4), after “monitor”, insert “and enforce”.

(1)    Clause 10, page 10 (line 7), after “monitor”, insert “and enforce”.

These amendments deal with the issue of consumer standards and the question of what instructions parliament wants to provide to ACMA from day one in terms of consumer standards. They deal with the issue of the codes of practice and broadcasting standards in the Broadcasting Services Act. Fundamentally the problem is that the new ACMA Bill only requires ACMA to monitor compliance with codes of practice under clause 10(1)(j) and monitor compliance with broadcasting standards in clause 10(1)(l). It strikes us as passing strange that the word ‘enforcement’ is not in there.

Senator Conroy —What!

Senator CHERRY —Exactly. What happened to enforcement? I know in the David Flint time, enforcement was a thing which always fell off the back of the board table. This point was drawn to our attention by the Communications Law Centre. I quote from the evidence that Dr Derek Wilding provided to the Senate committee:

In the broadcasting sector ... there has been a question mark over the authority’s approach to using the enforcement mechanisms that are available to it, and we have seen that in relation to the commercial radio standards. Part of it is a degree of timidity in approaching regulatory moves that are other than self-regulatory in nature. For example we might see the length of time that it takes to address an issue such as local content on regional television as something indicative of both underresourcing and a certain approach in using those enforcement mechanisms.

The committee report also cited comments from the Australian Consumers Association:

We would like to see the enforcement activities of the merged entity increased, so that non-compliance will be actively pursued, where necessary with enforcement action. We are not uncomfortable with an approach whereby action is usually based on a graduated use of regulatory measures using the minimum power or intervention necessary to achieve the desired result. However mild regulatory approaches without the certainty of persuasive sanctions should compliance be denied simply breed complacency and calls the regulator into poor repute. The message to ACMA must be that intervention is to be mounted with vigour consistent to the size, risk, and urgency of the non-compliance rather than pursuant to an ideology of minimal intervention or light touch at any cost.

That is why we think it is a drafting oversight not to actually say to ACMA from day one, ‘Don’t just monitor compliance; enforce compliance.’ It is a very poor message that parliament is sending to ACMA that we do not want them to place much emphasis on the issue of the enforcement of codes of practice or compliance with standards. Certainly, given recent experience with the ABA, we need to send a strong message that we do believe that enforcement of codes of practice and standards is very important and that it is fundamentally in the interests of consumers. It is a matter that has come out of the Senate inquiry. I would be disappointed if the government was non-responsive to the clear evidence coming out of the inquiry that there is a fundamental problem with culture in terms of the way the compliance with standards is currently being enforced.